Hon. Samuel Saiki -VS- Edo State House of Assembly & ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP: HON.JUSTICE O.O.OYEWUMI

DATE: 13^TH OF JANUARY, 2020 SUIT NO: NICN/EN/137/2012

BETWEEN

HON. SAMUEL SAIKI ………………………….CLAIMANT

AND

EDO STATE HOUSE OF ASSEMBLY
ATTORNEY GENERAL, EDO STATE …………DEFENDANTS

REPRESENTATION:

Kingsley Idahosa for the Claimant.

Theresa Eghe-Abe Assistant Director Edo State Ministry of Justice, I.O Kadiri Senior State Counsel Edo State Ministry of Justice for the Defendants.

JUDGMENT

This matter was filed on 26^th of July, 2012 by a General Form of Complaint. The complaint was amended on 27^th February, 2013 in which the claimant claimed the following reliefs against the defendants:

A DECLARATION that the decision of the Defendants to stop or withhold the payment of the Claimant’s monthly salaries and overheads from the 1^st day of March, 2010 to the 22^nd day of June, 2010 was without cause or legal justification and is wrongful, illegal, unconstitutional, null and void and of no effect whatsoever.
A DECLARATION that the decision of the Defendants to stop or withhold the payment of the Claimant’s monthly salaries and overheads from the 23^rd of June, 2010 to the 4^th of June, 2011 and also his severance benefit because of the resolution passed by the 1^st defendant pendent lite Suit No B/144/0S/2010 and B/375/2010 is wrongful, illegal, unconstitutional, null and void and of no effect whatsoever.
A DECLARATION that the resolution of the 1^st defendant of 22^nd of June, 2010, communicated to the claimant through its letter dated the 23^rd of June, 2010 ref: HA.485/VOL.X/130, declaring the claimant’s seat vacant which resolution is relied on by the defendants’ stop to withhold the payment of the salaries, overheads and severance benefit of the claimant is illegal, unconstitutional null and void and of no effect whatsoever.
A DECLARATION that the reliance placed by the defendants’ on the 1^st Defendant’s resolution of 22^nd June, 2010 to stop the payment of the salaries, allowances and a severance benefit of the claimant is wrongful and illegal.
AN ORDER of this Honourable Court that the Defendants pay to the Claimant Arrears of Salaries of N7,693,272.60k at N512,884.84 per month from the 1^st day March 2010 to the 4^th day of June, 2011.
A MANDATORY ORDER directing the defendants to pay the claimant forthwith his Severance Benefit of N4,011,675.00 and arrears of overhead of N10,500,000.00 at N700,000.00 per month from the 1^st day of March, 2010 to the 4^th day of June, 2011.

At trial, the claimant testified for himself as CW. He adopted his sworn deposition his evidence in the case and frontloaded some documents which were admitted and marked as Exhibits SS-SS7. The defendants testified through one Joseph Ohiafi as DW he adopted his sworn deposition his evidence. The defendants tendered a document which was admitted and marked as Exhibit JO.

It is the claimant’s case that he was elected Honourable Member of the Edo State House of Assembly under the People’s Democratic Party (PDP) to represent the people of Akoko Edo II Constituency between the 5^th day of June, 2007 to the 19^th day of January, 2011 when his election was invalidated by the Court of Appeal, Benin Division. The claimant averred that sequel to the purported removal of one Hon. Zakawanu I. Garuba who was elected as the speaker of the 1^st defendant under the People’s Democratic Party (PDP); the 1^st defendant commenced an action at Edo State High Court in Suit NO. B/144/OS/10 between Hon Peter Aliu 1 Ors v Hon Zakawanu I. Garuba to determine the validity of the act of the Action Congress members. He pleaded that during the pendency of the suit, the Action Congress members commenced factional sitting of the House of Assembly of Edo State without notice to him and other members of the under the Peoples’ Democratic Party (PDP). That the defendants stopped his monthly salary and overhead from March, 2010 to 19^th January, 2011 when his election to the Edo State House of Assembly was annulled by the Court of Appeal Benin division. That his monthly salary is in the sum N512, 884.84k (Five Hundred and Twelve Thousand Eight Hundred and Eighty Four Naira, Eighty Four Kobo) only. He averred that the 1^st defendant owe him an arrears of salary in the sum of N5, 385,290.82k from March, 2010 to 19^th January, 2011. He stated that his monthly overhead cost is N700, 000.00 and that the 1^st defendant owes him the sum of N7,350,000.00 from March, 2010 to 19^th January, 2011. That his severance benefit from the 1^st defendant is in the sum of N3, 510,215.60k. He pleaded that the total of his entitlement is in the sum of N16, 245,506.42.

The defendants on the 9^th of November, 2012 filed their Statement if defence but amended same on the 5^th of April, 2019 and averred that the claimant at the proceedings of the house on the 22^nd of February, 2010 in solidarity with the erstwhile speaker stopped attending the sittings of the house. They pleaded that the election of the claimant was annulled by the Court of Appeal Benin Division in October, 2010. That the claimant did not challenge the validity of his seat being declared vacant by a competent Court thus he is not entitled to the claimants before this Court. They averred that the claimant absented himself without due leave from the 24^th of February, 2010 until the expiration of his tenure on the 4^th of June, 2011. That in consequence to his absence his seat was in accordance to the law declared vacant on the 22^nd of June, 2010. They stated that the claimant is not entitled to monthly salary and overhead allowance as claimed as he failed to attend sittings and did not work for his constituency. That his claim for severance benefits fails as he failed to complete his tenure successfully. That the claimant has no cause of action against them as his case is statute barred having not commenced within 3 months after the cause of action arose.

In compliance with the rules of Court, the final written address of the defendants was filed on the 9^th of August, 2019 wherein they raised an issue for determination;

Whether this suit is competent as constituted before this Honourable Court.

Learned counsel submitted that this suit is incompetent as this suit is bereft of any enforceable right having been caught up by the limitation period of three months. He posited that the cause of action in this suit arose on the 22^nd of June, 2010 and the claimant filed this suit on the 26^th of July, 2012 which is a period of two years and one month lag and contrary to Section 2(a) of the Public Officers Protection Act. He cited in support the cases of Fadare v AG Oyo State [1982] NSC 643; Michael Obiefuna v Alexander Okoye [1961] ALL NLR (Pt 354). Counsel argued that asides from the claimant’s case from being statute barred, the tenets of the claimant’s Exhibit SS7 clearly vitiate the claimant’s claim of occupying the seat in issue because the Judgment of the Court of Appeal exists to vitiate any claim the claimant has in praying for the constitutional reliefs of this suit. This is because the said judgment dated 19^th of January, 2011 is to the effect that the claimant was not competent to occupy the said seat in issue ab initio. Hence the claimant’s claim in this suit is built on nothing and thus will not stand. He cited the case of Mcfoy v UAC [1962] AC 152 160 and urged the Court to dismiss this suit in its entirety.

The claimant on his part formulated four issues for determination in his final written address filed on 25^th of September, 2019 as follows:

Whether the 1^st defendant was right to stopped claimant’s salary and other allowances on the strength of the purported 2^nd sitting of the 22^nd February, 2010 by 13 opposition members of Action Congress (AC) less than 2/3 members of the House and the subsequent declaration of the claimant’s seat vacant are lawful, constitutional and with requisite authority.
Whether this suit is statute bar in view of the provision of Section 2 (1) (a) of the Public Officer Protection Law.
Whether the person whose election was invalidated by Election Tribunal pending appeal is entitled to be paid up to the day he last serve as member of the House upon final determination.
Whether upon a consideration of the evidence adduced by the parties to this suit, this Honourable Court ought not to ought not to grant the reliefs of the claimant as contained in its Amended Statement of Facts dated and filed 27^th February, 2013

On issue one, learned claimant’s counsel submitted that claimant has been able to establish that the defendant acted without authority and legal justification in stopping the payment of his salary, overheads and withholding his severance benefits, including the declaration of his seat vacant, he stated that this act is in denial of his right to fair hearing as contained vide Section 36 (1) of the 1999 Constitution as amended. Learned counsel contended that prior to the purported removal of one Hon. Zakawanu I. Garuba who was elected as the speaker of the 1^st defendant under the People’s Democratic Party (PDP), he and other members where not put on notice. That the 1^st defendant and 13 Action Congress members decided and contrary to Section 92(2)(c) of the 1999 Constitution supra to remove Hon. Zakawanu I. Garuba as the speaker of the 1^st defendant. It is counsel’s argument that sequel to the harassment and threat of claimant’s seat by the members of the Action Congress, he and other members instituted a suit at the High Court of Justice Benin City on the 7^th day of May, 2010 in Suit No B/375/10. That his however seat was declared vacant by the members of the Action Congress without waiting for the determination of the suits filed. That the Independent National Electoral Commission was instructed to conduct a bye election into the claimant’s seat but it declined and this prompted the Honourable Attorney General and Commissioner of Justice, Edo State to formally inform the 2^nd defendant of the illegality of the act of the 1^st defendant. He argued that the act of the defendants constitutes an affront to the Court. He cited the case of Okoye v INEC [2011] 28 WRNP 178 AT 179 R1. It is learned claimant’s counsel argument that contrary to the contention of the defendants, the claimant never boycotted nor absented himself from the sitting of the House rather he was prevented from entering his office at the 1^st defendant except he publicly decamp to the Action Congress. He urged the Court to so hold.

On issue two, learned counsel submitted that the claimants of the claimant cannot be statute barred as his claim are purely claim for work done and labour and not based on the declaration of his seat vacant as the defendants have argued. Learned counsel submitted that withholding claimant salary from the 1^st of March, 2010 to 22^nd of June, 2010 without legal justification before purportedly declaring claimant seat vacant on the 22^nd of June, 2010 falls within the exceptions where a public officer can be sued. See the cases of Ezeani v Nigeria Railway Corporation [2014] 6 WRN 72@ 80 R7; Sani v President FRN [2010] 9 NWLR (Pt 1198) 153. Learned counsel submitted on the authority of Dr. Aina Simeon Abiodun & 3 ors v The Governing Council Oyo State College of Education & One Other [2011] 22 NLLR (Pt. 62) 316 NIC that the claims of the claimant all relate to labour and entitlements and time does not run against labour and work done. He urged the Court to so hold.

On issue three, counsel posited that there is nowhere in our laws to support the argument that a person validly nominated by his party and sponsored by same and was returned in an election, but whose seat was invalidated by the Tribunal or Appeal is to return or refund monies earned while in office. He continued that the Court of Appeal never ordered the claimant to refund the salary earned during the period of his election and rightly so in view of the applicable position of the law as provided by Section 143 (1) Electoral Act, 2010.

On issue four, learned counsel argued that the claimant has succinctly discharged the burden of proof of its assertion against the defendant and hence entitled to his claim. He cited the cases of Okoye v Nwankwo [2014] 15 NWLR (Pt 1429) 93; Mikanno International Limited v Ehumadu [2014] 1 NWLR (Pt. 1387) 100. Counsel urged the Court to hold that the claimant is entitled to the sum of N22, 204, 947.60 (Twenty Two Million, Two Hundred and Four Thousand, Nine Hundred and Forty Seven Naira, Sixty Kobo).

The defendants in response to the claimant’s written address filed on the 14^th of October, 2019 their reply on points of law. Learned counsel submitted that learned claimant counsel went off the fulcrum of this suit that the arguments of counsel are focused toward urging the Court for an impossible relief of interfering or regulating the 1^st defendant’s internal affairs. He stated that the entirety of the submission of claimant’s counsel should be discountenanced against the claimant.

Arguing issues two, three and four together counsel contended that the decisions cited by the claimant on this issue are decisions of the Court of Appeal and not the Supreme Court. He reargued his case on statute of limitation. It is in this wise that I discountenanced his submission on same.

Having carefully gone through the processes filed by parties in this suit, the written submissions and arguments canvassed by both learned counsel in support of their respective cases; it is my humble view that the issues that would best determine this suit are:

Whether or not this suit is competent?
Whether or not the Claimant has proven his case to be entitled to the reliefs sought?

It is the defendants argument that the claimant’s suit is statute barred having been caught up by the limitation period of three months. He argued that the cause of action in this suit arose on the 22^nd June 2010 and the claimant filed this suit on the 26^th of July, 2012 which is a period of two years and one month; contrary to Section 2(a) of the Public Officers Protection Act. The claimant’s counsel has not disputed that the claimant’s suit was filed way outside the stipulated period of three months but have argued that the case of the claimant falls within the exception of Section 2(a) of the Public Officers Protection Act in that it is claim for work done. The reliefs sought by the claimant as evinced from his Statement of Claim earlier reproduced is praying to the Court to order that the decision of the defendants to stop or withhold the payment of his monthly salaries, overheads and severance benefits from the 1^st day of March, 2010 to the 22^nd day of June, 2010 and 23^rd of June, 2010 to the 4^th of June, 2011 was without cause or legal justification and is wrongful, illegal, unconstitutional, null and void and of no effect whatsoever and also order for the immediate payments of the Arrears of Salaries, Severance Benefits and arrears of overhead. I have examined the arguments of the parties vis-a-viz the Public Officers Protection Act and it is obvious to me that the Public Officers Protection Act has exceptions. In the case of Roe Ltd v UNN [2018] LPELR 43855 SC; the Apex Court held that the Public Officers Protection Act does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done. See also the cases of Obun v Obanliku Local Govt Council & ors [2017] LPELR 43804 CA; Okolie & ors v INEC [2017] LPELR 43405 CA. I have previously captured the claims of the claimant and it is without doubt that they all relate to claims for work and labour done which is one of the exception under the Public Officers Protection law. It is therefore without paradventure that claimant’s case is competent as constituted and in law not statute barred. Consequent upon which I find the argument of the defendants with regards to the competence of this suit as lacking in merit and is hereby discountenanced.

Now, issue two which is the main crux of the case, the hallmark of the claimant’s claim in this suit lies in his claims for his salaries, overheads and severance benefit. It is his argument that sequel to the purported removal of the Honourable Speaker one Hon Zakwanu Garuba and the Deputy speaker Levis Agbonkan, which led to the factionalization of the members of the 1^st defendant, his seat was declared vacant by the 1^st defendant and his salaries, overheads and severance benefit was also stopped. The defendant on the other hand stated that the claimant absented himself without due leave from the 24^th of February, 2010 until the expiration of his tenure on the 4^th of June, 2011. That in consequence to this, his seat was in accordance to the law declared vacant on the 22^nd of June, 2010.

For a proper understanding and determination of this suit, it is imperative I discuss the relationship between the claimant and the defendants. Sections 90 – 129 of the 1999 Constitution as amended provides for the laws guiding the affairs and activities of the House of Assembly of a State and this includes; (a). Composition and Staff of House of Assembly; (b) Procedure for summoning and Dissolution of House of Assembly; (c) Qualification for Membership of House of Assembly and Right of Attendance; (d) Elections to a House of Assembly; (e) Powers and Control over Public Funds and Remuneration.

From the above it is clear that a member of the House of the Assembly holds an elected position by virtue of the votes cast in his favour by the members of his constituency. Now the pertinent question that stems out from this case is, is there an employment relationship between the claimant and the 1^st defendant? This poser becomes necessary in view of the argument of the learned claimant’s counsel that the defendants failed to give the claimant fair hearing before his seat was declared vacant ditto the stoppage of his salary and other allowances. The answer to this question could be found in the decision of the Court of Appeal in the case of Bauchi State House of Assembly & ors v Guyaba [2017] LPELR 43295 CA. The Court while considering whether the National Industrial Court has jurisdiction over matters relating to suspension of members of the House of Assembly considered the issue of relationship between the speaker and members of the Bauchi State House of Assembly and the respondent and whether master/servant relationship existed between them? The Court per Mshelia JCA held;

……….. The holders of the offices mentioned under Section 84 (4) of the Constitution constitute what may be called political and public office holders within the contemplation of Section 254C (1) K. Nowhere is an elected member of the National or State House of Assembly specifically named as a being in the public service of the Federation or of a State in Nigeria. By virtue of S.92 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, a speaker and a deputy speaker of the House of Assembly are elected from among themselves. The speaker being elected from among members of the House cannot by any stretch of imagination be an employer of the respondent. Neither is the respondent an employee of the Bauchi State House of Assembly. A careful reading of Section 111 of the Constitution showed that the salaries or allowances of the respondent are not paid by the appellant but by Revenue Allocation and Fiscal Commission. I am of the humble view that the speaker and members of the Bauchi State House of Assembly were not the employers of the Respondent and the case had nothing to do with labour, employment trade unions or matters arising from the workplace or condition of service. There is nothing in Section 254C (1) (a), (d) and (k) of the Constitution to suggest that it covers disagreement amongst members of House of Assembly on the interpretation or construction of their standing orders. The unreported Judgment of the Court of Appeal Jos in Appeal Jos in Appeal No CA/J/2071/2013 between The Speaker Bauchi State House of Assembly & 1 Anor v Hon Rifkatu Samson Dauda delivered on 3^rd day of December, 2014 is relevant and instructive. In that case, a similar issue arose for determination by this Court. The facts and circumstances are similar with the case at hand. His Lordship Tur, JCA who wrote the lead judgment considered the provision of Section 254C (1)(k) to see whether Bauchi State High Court has jurisdiction to entertain the claim filed by the respondent. His Lordship held that “None of the questions set down for determination in the originating summons falls within the ambit of Section 254C (1)(a)-(m) of the National Industrial Court Act (3^rd Alteration) Act No 3 of 2010. I hold that the learned Chief Judge had the jurisdiction to entertain the originating summons.” I hold the view that the respondent’s claim as encapsulated in all the reliefs sought in his amended originating summons do not fall squarely under the exclusive jurisdiction of the National Industrial Court as contended by the Appellant’s counsel…….”

Applying the principles in the above cited case partly to this present, it is lawful to say without any hesitation that the claimant is not an employee of the 1^st defendant as to infer an employment relationship between them, rather the claimant is a Political Office Holder in the 1^st defendant whose duties are majorly to sit at the plenary and conduct the business of the House of Assembly for atleast one third of the total number of days in the annual legislative calendar. It is equally pertinent for me to state here that the issue of the claimant’s legislative duties or vacation of his seat is not within the powers of this Court to consider. The only area of concern to this Court is the issue relating to the claims of the claimant as espoused in his complaint and statement of facts. This Court by Section 254C (1) (k) of the 1999 Constitution as amended which provides that;

254C (1) Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases causes and matters-

(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public officeholder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;” (Underlining mine for emphasis)

Has the vires to adjudicate on the claimant’s salaries, overhead and other entitlements which were specifically provided for in the above cited Section, it is in the light of this that I assume jurisdiction over this matter.

Next, is the claimant’s claims that the decision of the defendants on the 22^nd of June, 2010 to stop or withhold the payment of the Claimant’s monthly salaries overheads, allowances and a severance benefit from the 1^st day of March, 2010 to the 22^nd day of June, 2010, 23^rd of June, 2010 to the 4^th of June, 2011 is wrongful, illegal, unconstitutional, null and void and of no effect whatsoever. The defendants on the other hand stated that the claimant absented himself without leave from the 24^th of February, 2010 until the expiration of his tenure on the 4^th of June, 2011. That in consequence to his absence his seat was in accordance to the law declared vacant on the 22^nd of June, 2010. They averred that the claimant is not entitled to monthly salary and overhead allowance as claimed as he failed to attend sittings and did not work for his constituency for the period he claims. From the record before the Court it is clear that the claimant on the 24^th of February, 2010, 12^th of April, 2010 and 22^nd of June, 2010 was absent for the sittings of the house. That on the 22^nd day of June, 2010 it was resolved by the house as per the observation of one Hon. Uyi Igbe (representing Oredo West) that some of the members of the house including the claimant have without justification boycotted the sittings of the Court. It was resolved by the House having regard to Section 109 (1)(f) of the 1999 Constitution as amended that the seat of the claimant should be declared vacant. The claimant was on the 23^rd of June, 2010 informed of the decision of the 1^st defendant and on the 19^th of January, 2011 the Court of Appeal, validated the decision of the 1^st defendant by declaring the claimant’s seat vacant and equally ordered that a fresh election should be conducted within one month from the date of the judgment.

I have stated supra in this judgment that the propriety or otherwise of the defendants declaration of the claimant’s seat vacant is not within the adjudicatory powers of this Court, rather this Court can only consider whether or not he is entitled to his salaries, allowance, overhead for the period as stated by the claimant in his claim. The claimant in his claim one in this suit has prayed to the Court to find in his favour that the stoppage or withholding of his salary and overheads by the 1^st defendant from the 1^st day of March, 2010 to the 22^nd day of June, 2010 was without cause or legal justification and is wrongful, illegal, unconstitutional, null and void and of no effect whatsoever. It is the law that he who asserts must prove the existence of his assertion this is predicated on the fact that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists. See Section 131 of the Evidence Act, 2011 and the cases of Akinbade & Anor v Babatunde & ors [2017] LPELR 43463 SC; Osumili & Anor v CNPC/BGP International [2019] LPELR 46950 CA; Edosomwan v Idugboe [2019] LPELR 46423 CA. I have carefully perused the document tendered as exhibits before this Court and did not find any document to evince the claim of the claimant in his favour. The claimant in this suit has not by any shred of evidence shown to this Court how he is entitled to his salaries for the period from the 1^st day of March, 2010 to the 22^nd day of June, 2010 as he wants the Court to believe. He has not discharge the burden placed on him by law to evidently substantiate his claim. There is no single document or cogent evidence canvassed to prove that he attended the plenary and conducted the business of the 1^st defendant during the period under consideration. The press conference organised by him and his colleagues adjourning the business of the 1^st defendant could not help his case either. It is trite that the burden of proof in civil cases is on the party that will fail if no proof is adduced in his favour See the cases of Bala v Gwaram & Ors [2017] LPELR 43205 CA; Anwadike & Anor v Anwadike & ors [2019] LPELR 46970 CA. The claimant in view of his failure to credibly prove to the Court the existence of his claims, is fatal to his case and thus bound to fail. It is in the light of this that I find and hold that claimant’s claim one fails and thus dismissed.

With respect to claimant’s reliefs two, three, four, five and six determined together, It is apparent on record that the claimant from the 22^nd of June, 2010 the day his seat was declared vacant by the 1^st defendant till the 4^th day of June, 2011 the end of his tenure did attend the plenary of the 1^st defendant or did conduct any business of the 1^st defendant as to earn him the claims before the Court. It is the law that a labourer is entitled to claims for his salaries for work done and shall not be so withheld by the employer as failure to so do gives him the right of action to recover same. Inversely a labourer shall not be entitled to his wages for the period of work not done. The claimant sequel to the 23^rd of June, 2010 has not proven to the Court that he worked and participated in the business of the House of Assembly to be entitled to his claims. It is in consequence that I find that the claimant is not entitled to his claims two, three, four, five and six.

In all, it is obvious from the above stated supra that the Claimant has failed woefully to canvass evidence in prove of his claims in this case and consequently the Claimant case fails and is hereby dismissed for lacking in merit.

I make no order as to cost.

Judgment is entered accordingly.

Hon. Justice O.O. Oyewumi

Presiding Judge